Netherlands – Court of The Hague, 18 July 2016, NL16.1221
| Country of Decision: | Netherlands |
| Court name: | Court of The Hague (Hearing location Zwolle) |
| Date of decision: | 18-07-2016 |
| Citation: | NL16.1221 |
Keywords:
| Keywords |
|
Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
|
Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
|
Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
|
Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
|
Material reception conditions
Description
“Reception conditions that include housing, food and clothing, provided in kind, or as financial allowances or in vouchers, and a daily expenses allowance.” |
|
Vulnerable person
Description
Persons in a vulnerable position, such as"Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Note: Directive 2011/36/EU defines a position of vulnerability as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved." |
Headnote:
The transfer of “extra vulnerable” asylum seekers from the Netherlands to Italy is contrary to article 3 ECHR.
Facts:
The Dutch Secretary of State for Security and Justice refuses to consider a request for asylum, as Italy is responsible under the Dublin Regulation.
The Netherlands has requested Italy to take over responsibility of the case and Italy has accepted this request. The claimant argues however that this taking over of responsibility is contrary to article 3 ECHR, since the number of accommodation places for asylum seekers in Italy is inadequate and there is no guarantee that the claimant and her minor child (extra vulnerable asylum seekers) will be provided with care.
Decision & reasoning:
In the judgment Tarakhel v Switserland, the ECtHR has considered that the Italian asylum system provides insufficient guarantees with regard to the reception accommodation facilities for families with minor children. Therefore the transferring Member State is obligated to obtain individual guarantees.
The claimant claims that a general letter from the Italian authorities does not meet the required individual guarantees. The defendant argues that unless further notice is given from the Italian authorities, giving specific reasons as to why the requested guarantees cannot be provided, the planned transfer will not take place. The defendant refers to case law of the Council of State, which states that individual guarantees from Tarakhel v Switzerland can be waived as expressed in the circular of 8 June 2015. The circular states that Dublin-transfers can be waived if there appear to be sufficient reception capacity for extra vulnerable asylum seekers.
The court rules that this method by the Dutch authorities however cannot be applied, if there are indications that there is a possibility that there are insufficient reception accommodation facilities available. The court obliges the Dutch authorities to also take into account the number of asylum seekers that is transferred by other Member States in determining the actual number of available reception accommodation facilities. As a result, a transfer from the Netherlands to Italy of extra vulnerable asylum seekers without individual guarantees, which relate to the number of available reception accommodation facilities, is contrary to article 3 ECHR.
Outcome:
Appeal granted.
Subsequent proceedings:
This judgment was later appealed to the Administrative Jurisdiction Division of the Council of State, which held on the 9th December 2016 that the decrease of the number of reception facilities did not prevent the Dublin transfer of the vulnerable asylum seeker to Italy. Whilst the number of available reception facilities at the SPRAR-locations was held insufficient, the Division concluded that Italy’s previous commitment to increase the capacity of the reception facilities had not been disproven.
Observations/comments:
This case summary was written by Birte Schorpion, an Immigration Law LLM-student at Queen Mary University of London.
The case summary was proof read by Miek Lamaire, MA International Security.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Netherlands - Aliens Act Article 3 |
| Netherlands - Aliens Act Article 17 |
| Netherlands - Aliens Act Article 30 |
| Netherlands - General Administrative Act (awb): art 3:46 |
Other sources:
Italian authorities, Circular Letter: Guarantees for vulnerable cases; family groups with minors, 8 June 2015.